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HomeMy WebLinkAbout94-558 GlotfeltyKenneth Glotfelty 710 Meadowbrook Drive Carlisle, PA 17013 STATE ETHICS COMMISSION 309 FINANCE BUILDING P.O. BOX 11470 HARRISBURG, PA 17108 -1470 TELEPHONE (717) 783.1610 ADVICE OF COUNSEL April 20, 1994 94 -558 Re: Conflict, Public Official /Employee, School Board Member, Use of Authority of Office or Confidential Information, Vote, Immediate Family, Fact Finder's Report. Dear Mr. Glotfelty: This responds to your letter of April 7, 1994 in which you requested advice from the State Ethics Commission. Issue: Whether the Public Official and Employee Ethics Law presents any prohibition or restrictions upon a School Board Member. Facts: You are a Member of the Big Spring School Board. Your wife is a teacher in the district. Mr. Robert Barrick and Mr. Ashby Collins are also Members of the Big Spring School Board. Mr. Barrick has a sister who is a teacher in the Big Spring School District and Mr. Collins is a Member of the Pennsylvania State Education Association. They have authorized you to request this advisory on their behalf. A fact finder has been requested by Big Spring Education Association and has been appointed by the Pennsylvania Department of Labor. The fact finder receives input from both sides of the labor dispute and then brings back his opinion of a -reasonable settlement. The board and the union must both vote for the agreement for it to be accepted. The fact finder has brought back his proposal on April 4, 1994 and it must be voted on by April 14, 1994. You believe that this is not negotiation but is a contract settlement if both parties vote yes. A subsequent discussion ,a. h Attorney Paul Helvy, who is representing you in a de laratpFy judgement action in the Court of Common Pleas of Cumberland County confirmed that when the fact finder's report is returned and voted upon, if both sides vote in favor of the report, it is a final agreement. Glotfelty, Kenneth, 94-558 April 20, 1994 Page 2 Based upon the above, you request an advisory from the State Ethics Commission as to whether you, Mr.' Barrick and Mr. Collins may vote on the fact finder's report. Discussion: It is initially noted that pursuant to Sections 7(10) and 7(11) of the Ethics Law, 65 P.S. §5407(10), (11), advisories are issued to the requestor based upon the facts which the requestor has submitted. In issuing the advisory based upon the facts which the requestor has submitted, the Commission does not engage in an independent investigation of the facts, nor does it speculate as to facts which have not been submitted. It is the burden of the requestor to truthfully disclose all of the material facts relevant to the inquiry. 65 P.S. §5407(10)," ( An advisory only affords a defense to the extent the requestor has truthfully disclosed afl of the material facts. As School Board Members for the Big Spring School District, you are publics officials as that term is defined under the Ethics Law, and hence you are subject to the provisions of that law. Section 3(a) of the Ethics Law provides: Section 3. Restricted Activities. (a) No public official or public employee shall engage in conduct that constitutes a conflict of interest. The following terms are defined in the Ethics Law as follows: Section 2.- Definitions. "Conflict or conflict of interest." Use by a public official or public employee of the authority of his office or employment or any confidential information received through his holding public office or employment for the . private pecuniary benefit of himself, a member of his immediate family or a business with which he or a member . of his immediate family is associated. "Conflict" or "conflict of interest" does not include an action having a de minimis economic impact or which affects to the -sane, degree a - class - consisting of the general plin or -a subclass consisting of an industry, occupation or other group which includes the public official or public employee, a member of his immediate family or a business with which he or a, member. of his immediate family is associated. Glotfelty, Kenneth, .94 =538 April 20, 1994 Page 3 "Authority of office or employment." The actual, provided by law, the exercise of which is necessary :to the performance of duties and responsibilities unique to a particular public office or position of public employment. "Immediate family." A parent, spouse, child, brother or sister. In addition, Sections 3(b) and 3(c) of the Ethics Law provide in part that no person shall offer to a public official /employee anything of monetary value and no public official /'employee shall solicit or accept anything of monetary value based upon the understanding that the vote, official action, or judgement of the public official /employee would be influenced thereby. Reference is =wade to . these provisions of the law not to imply that there has been or will be any transgression thereof but merely to provide a complete response to the question presented. Section 3(j) of the Ethics Law provides as follows: Section 3. Restricted activities. (j) Where voting conflicts are not otherwise addressed by the. Constitution of Pennsylvania or by any law, rule, regulation, order or ordinance, the following procedure shall be employed. Any public official or public employee who in the discharge of his official duties, would be required to vote on a matter that would result in . a :conflict of interest shall abstain from voting and, prior to the vote being taken, publicly announce and disclose the nature of his interest as a public record in a written memorandum filed with the person responsible for recording the minutes of the meeting at which the vote is taken, provided that whenever a governing body would be unable to take any action on a matter before it because the number of members of the body required to abstain from voting under the provisions of this section makes the majority or other legally required vote of . approval unattainable, then such members shall be permitted to vote if disclosures are ntade as otherwise provided herein. ,In the case of three- member •governing body of a political subdivision, where one member lias abstained from voting as a result of a conflict of Glotfelty, Kenneth, 94 -558 April- 20, 1994 Page 4 interest, and the remaining two members of the governing body have cast opposing . votes, the member who has abstained shall be permitted to vote to break the tie vote if disclosure is made as otherwise provided herein If a conflict exists, Section 3(j) requires the public official /employee to abstain and to publicly disclose the abstention and reasons for same, both orally and by filing a written memorandum to that effect with the person recording the .minutes, or supervisor. In the event that the required abstention 'results _.in the inability of the governmental body to take action because a majority is =attainable due to the abstention (s) from conflict under the Ethics Law, then in that event participation is :permissible provided the disclosure requirements noted above are followed. See, Mlakar, Advice 91- 523 -S. You are further advised that the use of authority of office is more than the mere mechanics of voting and encompasses all of the tasks needed to perform the functions of a given position. See, Juliante, Order No. 809. Use of authority of office includes discussing, .conferring with others, lobbying for a particular result and /or- any other use of the authority of office in which the result would be a private pecuniary benefit to a business with which a public official or a member of his immediate family is associated. As you aware. from Glotfeltv, Advice 93 -609, and Glot fejt y, Advice 94 -510, the seminal Commission decision which applies Section 3(a) under similar facts is Van Rensler,• Opinion 90 -017. The issue there was whether the Ethics Law prohibited school board directors from participating on negotiating teams and voting on collective_ bargaining agreements when members of their immediate families were .school district employees represented by the bargaining units. The Ethics Law does not restrict directors from voting on final agreements, but directors cannot take part in negotiations leading to final agreements. It was held that directors could vote on final agreements because of the exclusion in the definition of "conflict or conflict of interest" which applies if the immediate family members are members of subclasses consisting of industries, occupations or other groups containing tore than one member and the family members would be affected exactly as.the other members of the subclasses. The Commission held that if these two prerequisites for applying the exclusion were met, school directors could vote on ; final collective bargaining agreements. In this case, you indicate that your proposed vote is not on Ciotfeity, Kenneth, 94 -5 April 20, 1994 Page 5 a final collective bargaining agreement, but on a fact finder`'°s report. Following the Commission decision in Van Rensler, votin4 on a fact finder's report would be similar to voting on a final collective bargaining agreement. This conclusion is based Upon the factual assumption that the fact finder's report, if app€oftd by both sides, is a final, binding agreement. In both eases; the exclusion in the definition of "conflict or conflict of interest" would apply provided the immediate family members aft iftembefs of a subclass consisting of an occupation or group coftta:ni!g more than one member and the immediate family members would be affected exactly the same as other members of the subclass Under these circumstances, the proposed vote by the board members on the fact finder's report would not be prohibited under the Ethics Law. The propriety of the proposed conduct has only been addressed under the Ethics Law; the applicability of any other statute, codee ordinance, regulation or other code of conduct other than the Ethics Law has not been considered in that they do not involve an interpretation of the Ethics Law. Specifically not addressed herein is the applicability of the Public School Code. Conclusion: As Members for the Big Spring School District, you are public officials subject to the provisions of the Ethics Law. Based upon the facts of this case, Section 3(a) of the Ethics Law would not prohibit or restrict you or the other Board Members from voting on the fact finder's report provided the exclusion in the definition of conflict of interest applies. Lastly, the propriety of the proposed conduct has only been addressed under the Ethics Law. Pursuant to Section 7(11), this Advice is a complete defense in any enforcement proceeding initiated by the Commission, and evidence of good faith conduct in any other civil or criminal - proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance` on the Advice given. such. This letter is a public record and will be made available ad Finally, if you disagree with this Advice or if you have and reason to challenge same, you may appeal the Advice to the . full - Commission. A personal appearance before the Commission will be scheduled and a formal Opinion will be issued by the Commission. Any such appeal must be in writing and must be actuaiiv received at the Commission within fifteen (15), da/s'of tti = date rc fthis~ Advice, eurauant to s1 Pa Code :MAN.. Thwappagiouryilitgratiebordi Glotfe Kenneth, 94 -S58 April 20, 1994 Page 6 at the Commission by hand delivery, United States mail; delivery se 'vfee, or by FAX transmission (717- 787 - 0806). ncen D Chief Co. se erely,